We’ve known for a while that U.S. federal antiterrorism law has a large gap: While it has a panoply of penalties attached to the international form of terrorism, domestic terrorism is not a federal crime. Now the Biden administration is considering resolving the matter by having Congress fill the gap—but there are ample and important questions about whether it should even try.

A senior official in Biden’s Justice Department told a House hearing this week that it is “actively considering” whether it should pass such legislation—a question made particularly acute by the insurrection at the U.S. Capitol on Jan. 6. Yet while the Democrats’ approach is manifestly more responsible than Republican denialism, obstruction, and obfuscation in dealing with the matter, passing such legislation remains fraught—primarily because despite the omission, federal and local law enforcement has more than adequate ability to prosecute domestic terrorism with laws already on the books, while a new law would open whole new vistas for civil liberties abuses, especially in the hands of another corrupt Republican regime.

“One of the things we’re looking at is would we need new authorities,” Deputy Assistant Attorney General Brad Wiegmann from the DOJ’s national security division told a House subcommittee hearing Thursday.

Current federal law allows prosecutors to charge radical Islamists with terrorism, but because of a loophole created after 9/11 and the passage of the Patriot Act—which describes domestic terrorism, yet oddly attaches no criminal penalties to it, though it does contain some measures that provide authorities the opportunity to charge environmental protesters with terrorism-related crimes—they have no ability to charge homegrown criminal perpetrators with domestic terrorism.

Unless a perpetrator has a connection to a foreign terrorist organization, they can’t actually be charged with terrorism.“This is a cancer on our country,” Democratic Congressman Matt Cartwright of Pennsylvania told the Appropriations subcommittee holding the hearing. “Right-wing extremist attacks and plots have greatly outnumbered those from all other groups combined and caused more deaths as well.”

Indeed, the numbers even from 2020—when the COVID-19 pandemic foreclosed on most opportunities for domestic terrorism directed at “soft targets” such as public gatherings—showed an increase in right-wing domestic terrorism in the U.S.

Since the report only included data on fatal incidents, it did not include any of the many cases of far-right domestic terrorism in 2020 that involved preemptive arrests of would-be terrorists. This includes the arrests in early 2020 of members of neo-Nazi terrorism squads The Base and Atomwaffen Division (members of these organizations were also arrested during the year for similar activities) as well as the arrests in Michigan of 14 militiamen who planned both an attack on the state Capitol in Lansing featuring televised executions of state officials, and to kidnap Gov. Gretchen Whitmer.

In all those incidents—as well as the prosecution of the Jan. 6 insurrectionists currently under way, which appears headed toward over 500 cases and will be the most complex federal prosecution in U.S. history—current laws have proven more than adequate.

As Michael German of the Brennan Center for Justice explains, “Congress has already provided powerful tools that give prosecutors multiple options.”

For example, 18 U.S.C. § 2332A prohibits material support for acts of terrorism in both domestic and international cases. … [It] is a domestic terrorism statute. It further references 57 different federal criminal statutes that the code calls “federal crimes of terrorism.” Fifty-one of them apply to cases the federal government designates “domestic terrorism.” Suggesting that these 51 “federal crimes of terrorism” are not sufficient because they don’t explicitly use the word “domestic” in their titles hardly justifies passing a new law that would expand the government’s already-broad prosecutorial powers.

Any proposed new laws might have a benign or even helpful effect for a Biden administration intent on corralling the growth of far-right extremist violence. But once passed, the laws then are lying around waiting to be abused by another Trump administration not only hostile to efforts to deal with right-wing terrorism, but pronouncedly eager to use such designations, as Trump demanded, on Black Lives Matter and antifa—that is, on nonwhite and leftist activists, as federal authorities already have a long track record of doing.

“While Justice Department officials have used notorious incidents of white supremacist violence to push for a new domestic terrorism statute, the Department itself continues to de-prioritize far-right violence and focus its most aggressive tactics instead against environmentalists, political protesters, and communities of color,” German wrote. “It isn’t hard to guess who would likely be targeted with new domestic terrorism laws.”

The chief potential benefit of a new law would be to create a greater consciousness within the law enforcement community of the threat posed by far-right extremist violence, as well as to cover any kinds of potential acts that might slip between the cracks of the current laws. “The question we’re really wrestling with is: Are there gaps?” Wiegmann said. “Is there some type of conduct that we can envision that we can’t cover or would it be an otherwise benefit in having something else other than what we’re having now?”

However, even the patina of fresh new law as a tool to confront the matter will wear off quickly in the hands of a law enforcement apparatus riddled throughout with the presence of the same white nationalist ideologues who have inspired these acts of terrorism—as a study conducted by German demonstrated is in fact the case.

American law enforcement has increasingly been polluted by the rising numbers of far-right extremists within their ranks—some of them recruited from within police forces, while others have surreptitiously infiltrated them. “While it is widely acknowledged that racist officers subsist within police departments around the country, federal, state, and local governments are doing far too little to proactively identify them, report their behavior to prosecutors who might unwittingly rely on their testimony in criminal cases, or protect the diverse communities they are sworn to serve,” he writes.

It’s not credible to expect our national law enforcement apparatus to respond effectively to far-right domestic terrorism when its ranks are full of people sympathetic to their cause. So any effective solution to dealing with the spread of domestic terrorism will necessarily be wrapped up in the similarly major issue of larger police reform, which should probably begin with a focused effort on weeding out extremists within their ranks.

“The problem is not that we need to expand our laws,” observed Moustafa Bayoumi at The Nation. “Rather, the problem is making sure we use our laws, and that we use them fairly, consistently, and to the full extent possible. The real scandal here is not the lack of a domestic terrorism statute. The real scandal is the free pass white supremacy has had from law enforcement for all these years.”

There’s little doubt that U.S.-based domestic terrorism is a significant issue that needs to be addressed effectively, and not simply for the sake of Americans. A separate House committee heard this week how foreign diplomatic partners are increasingly concerned that we are exporting the problem to other nations.

John Godfrey, acting coordinator for counterterrorism at the Department of State, told House Homeland Security Committee members that the U.S. is now seen as an “exporter” of racially and ethnically motivated violence. In his opening statement, Committee Chair Bennie Thompson of Mississippi remarked: “The January 6 attack will undoubtedly serve as a watershed moment for RMVE actors across the globe—and we cannot ignore how the event is affecting our allies and others abroad.”

Published with permission from Daily Kos.